Archive | Bureaucracy

As I start this post, news is breaking that President Obama has formally invoked executive privilege in his administration’s running battle with the House Oversight and Government Reform Committee over the latter’s investigation of – and demands for documents from – the Justice Department’s “Fast and Furious” southwest border gun-tracking (or rather not) operation.

Combined with the President’s immigration announcement last week—regarding his plan to cease deportation of (and issue work permits to) young immigrants brought into the country by their parents—this has set off accusations of executive fiat, dictatorship, and the like, augmented today by dark hints of cover-up. For the moment I would note only that neither action is particularly out of line with recent presidential history, and give a quick background on the doctrine of “executive privilege” (from the perspective of presidential power and interbranch relations, rather than from the purified air of legal doctrine.)

First point: there is no such thing, in the Constitution at least. So to say it is “formally invoked,” as I did above, is not quite right. However, in the famous Nixon tapes case, U.S. v Nixon, the Court did hold that such a privilege was constitutionally grounded. The president lost the battle, but the presidency might have won the war.

A couple of today’s headlines remind us that we need to pay attention not just to the ballyhoo when laws are passed but to the difficulties of turning statute into tangible reality. The 2010 food safety law extending the reach of the Food and Drug Administration is stalled in the process of regulatory review at OMB – a process tentatively begun by President Nixon, revamped by President Reagan, and maintained by all presidents since, in an effort to ensure that departmental regulations reflect presidential preferences.

And the lengthy efforts to specify the tenets of the so-called Volcker Rule dealing with banks’ proprietary trading (part of the Dodd-Frank law) stands as a poster child for how an ostensibly simple idea can be extraordinarily difficult to put into workable practice.

I’ve recently written about some of the ways the American system shapes implementation, with special regard to education policy, in a piece for Education Week. It centers on the idea that the types of policy that are most readily implemented come down to two basic forms: bribery, and blackmail. More here.

The titular proverb, by the way, apparently has its roots in a story about a returning Argonaut – who had been told by a local soothsayer that he would never again get to drink his vineyard’s wine. Returning home from his travels with Jason, the Argonaut summoned the soothsayer to offer a mocking toast. But before he could take a sip, he was called away to deal with a rampaging wild boar – which killed him.

So, don’t mess with soothsayers, and don’t take implementation for granted.

This weekend, former Nixon staffer Charles Colson died at the age of 80. Colson was, of course, well known for his Watergate-related crimes (as well as for his subsequent turn to Christian ministry) but it is worth noting too his contributions to what has become known as the “administrative presidency.”

In Nixon’s day a number of strategies were developed to enhance presidential control over the wider bureaucracy. Among other initiatives, an early version of regulatory review was essayed, and the Bureau of the Budget was transformed into the Office of Management and Budget. In the new OMB, the White House hoped, management was supposed to mean (in John Ehrlichman’s wonderful phrase from a 1972 memo) “get[ting]-the-Secretary-to-do-what-the-President-needs-and-wants-him-to-do-whether-he-likes-it-or-not.”

Further, especially in the second term, there was an explicit plan to take administration appointments far more seriously in terms of systematic evaluation of appointees’ responsiveness and loyalty to the president rather than simply on their managerial abilities. This involved outreach to “ethnic” voters (as opposed to WASPs) and others who had traditionally leaned Democratic, in hopes of consolidating a “New American Majority.”

Here Colson was a very important player. In a typical memo (see here for page 1, and here for page 2) from early 1973 I unearthed at the Nixon Library last summer, Colson disparages the aim of looking only for “the best-qualified people.” Instead, he urges the appointment of “true believers” who can “really rock the boat” and who “are dedicated to the President…and to the social and political goals he has set for the country.” (Colson also warns that the White House had better “be absolutely sure that [the prospective appointees] are in fact Italians. We’ve been burned that way before.”)

Nixon’s efforts, thanks partly to Watergate, stalled – they were, in the end, (in SUNY’s Richard Nathan’s phrase) “the plot that failed.” But future presidents, seeing its potential, helped the plot thicken. Presidents Reagan (see Nathan’s The Adminstrative Presidency), Clinton (see Elena Kagan’s Harvard Law Review novella, “Presidential Administration”), and George W. Bush (see many sources, including my own The New Imperial Presidency) were key contributors. Or, simply see today’s banner New York Times story pointing out Barack Obama’s new(ish) acceptance of the desirability of executive action (complete with a front-page quote from University of Chicago political scientist Will Howell).

The story notes a number of the unilateral actions taken by the administration ranging from the interpretation of statutorily delegated power to the January recess appointments that sought to redefine what counted as a legislative recess. It is perhaps worth noting that uncovering these particular actions did not require the coded movement of flowerpots or clandestine meetings in DC-area parking garages. After all, the administration has put out numerous press releases trumpeting these moves, and even has a section of the White House website dedicated to the “We Can’t Wait” agenda. Still, I will never complain about prominent coverage of issues of presidential power; and in other reporting, Charlie Savage has shown that Obama’s actions in this arena are more extensive still, especially as extended to the war power and related issues of due process.

The piece also usefully notes Congressional acquiescence to presidential expansionism. Sometimes this is by inaction, which leads to acceptance and thus to precedent; sometimes by explicit endorsement. Sometimes, too, presidents re-purpose old law to suit new priorities. For instance, the Obama administration’s aggressive prosecution of leakers has been conducted at least in part under the auspices of the Espionage Act of 1917, still on the books. More benignly, perhaps, his recent proclamation designating 15,000 acres of wilderness around California’s Fort Ord as a national monument springs from authority granted by the Antiquities Act—itself an antique dating from 1906.

All this might have pleased Chuck Colson. Even so, it is worth noting that unilateral action is itself hardly unconstrained (and perhaps not always truly unilateral). Consider last week’s accounts of President Obama’s urging legislative action – the passage of the Employment Non-Discrimination Act (ENDA) – as an alternative to his issuing an executive order prohibiting federal contractors from discriminating on the grounds of sexual orientation (see here and here.) Here, buffeted by election-year winds, the president has discovered what John F. Kennedy did in 1961 when faced with a parallel order seeking to prevent housing discrimination. Namely—sometimes, we can wait! When, and how long, is likely subject to the same sorts of calculations, contexts and constraints as those governing presidential actions in other areas.

Some sad breaking news for the political science community: James Q. Wilson died this morning. A preliminary obituary is here.

Wilson had returned to Massachusetts recently to teach at Boston College after long stints at Harvard and UCLA, as well as at Pepperdine. The obituary focuses almost entirely on Wilson’s sometimes-controversial contributions to the sociology of crime and “the moral sense,” but his influence ranged far more widely. He was a founding and frequent contributor to The Public Interest. And his books Political Organizations (1973) and Bureaucracy (1989), among others, are classics. I will expand on Wilson’s contributions to the study of American public administration in a future post. As further evidence of his wise influence I will only point out for now his observation that his descendants “feel a legal obligation to live within 30 minutes of Fenway Park.”

Roy Ash, an important figure in the “battles of the budget” in the 1970s as director of OMB under Presidents Nixon and Ford, died this week. (His obituary is here.)

Given President Obama’s proposal today on government reorganization—he hopes to merge six agencies dealing with business and trade into one—it is timely to note the history of such efforts and the lessons Roy Ash might teach us on that front.

Today’s New York Times’ story about Solyndra centers on presidential staffing: on the disputes between Office of Management and Budget (OMB) staff and others in the Obama administration over the loan guarantee program and whether the company was a good credit risk, an argument that was still in full force at the time the President made his now-infamous visit to Fremont. A report produced by the minority staff on the House Energy and Commerce Committee (available here – by the way, does it bother anyone else that committee websites now barely pretend there is more than one party represented on each committee?) quotes an email from an OMB staffer saying “hope [the company] doesn’t default before then…”

Few people in the universe care about the details of presidential staffing—and they did not write this story. Most notably, I found it interesting that OMB is referred to as a staff “inside the White House” and again as “part of the White House.” This is surely for good journalistic reasons – an intra-White House dispute is bigger news and more fun. But let me be pedantic for a moment, I promise for a purpose. The basic point: OMB is not in the White House.

Now, this is true physically, but that in itself doesn’t matter much. Lots of “White House” staffers have their offices outside the West Wing, usually in the ornate Eisenhower building next door (which, ironically, Eisenhower wanted to tear down) or up the street a bit (much of OMB is in the “new” executive office building on 17th Street NW).

It is also true organizationally. The White House Office (WHO) and the OMB are both separate units within the larger presidential staff holding company called the Executive Office of the President. But this, too, might simply be a matter of administrative convenience.

Most crucially, then, it is true historically and culturally. OMB and the personal White House staff are different: one serves the president of the time – indeed, the institution of the presidency—and the other a specific incumbent’s personal and political needs. This has been the case since Franklin Roosevelt created the EOP in 1939, created a separate White House staff and made OMB (then known as the Bureau of the Budget) the bulwark of the institutional presidency. OMB’s ethos is meant to be one of “neutral competence”: its staff are mainly careerists, not political appointees. Its job, when it does it well, is to give the president the factual basis for decision-making – some idea of the expected utility of a given policy choice.

Some argue that over time, the distinctions between OMB and the White House staff have eroded, through the politicization of OMB or through the elevation of budget issues (OMB’s main responsibility) to partisan prominence. Nixon is often credited/blamed. There is important truth to this, though the story is (naturally) more complicated: for a much longer version of part of the timeline, see here.

But the separate ethos remains, even if frayed around the edges. In fact, today’s story, and the House report more generally, show OMB doing its job – and the White House staff doing their job too. OMB analyzed the industry, raised technical issues, kept the Department of Energy from its worst impulses, and suggested to the White House some potential political landmines. The White House staff, including Larry Summers, Valerie Jarrett, Carol Browner and Ron Klain, took that information, did some additional legwork, and decided the rewards of the program (and the visit) outweighed the risks.

The point isn’t that they were wrong this time around. It is that the separation of OMB and WHO makes it more likely that they will be right more often, over time. Thus that separation is something worth preserving, even when it embarrasses the president in the short run.

We might think that if deadlines don’t accelerate decisions, at least they make it clearer when a decision will be made. Yet a study I co-authored with Stanford political scientist Justin Grimmer shows that sometimes the opposite can occur. Once a decision-maker misses a deadline — and many, many deadlines are not only missed, but are expected to be missed — there is usually much less incentive to continue speedy work.

My question is: Why are there IRB’s at all? The IRB seems like some sort of parallel legal system. If people are doing something illegal, it should be stopped. If something is legal but should be illegal, the law should be changed. But I don’t know that we need a parallel legal system. Or maybe it is necessary for international development studies, given the weakness of international law (for example, the widespread worry that a person arrested for rape in the United States would not be extradited, if he were to somehow manage to escape back home to France).

2. This site (via Seth Roberts) reminds me of why IRBs can be a bad thing.

For me, IRBs are typically a waste of time, nothing more, but for others they are a (potential) protection against health hazards and exploitation, and for others they are a barrier to research progress.

P.P.S. I do understand there is a connection between the IRB and the legal system, that one role of the IRB is to catch potential problems in research design before they break the law. So maybe my problem is more with the U.S. legal system than with IRB’s.